The Court of Justice of the Economic Community of West African States (ECOWAS) delivered a landmark judgment on 14 February 2018 in which it found that the rights of four Gambian journalists had been violated by the actions of the Gambian authorities, and through the enforcement of laws criminalising speech.
The judgment also recognised that the criminal laws on libel, sedition and false news disproportionately interfere with the rights of Gambian journalists and directed that the Gambia “immediately repeal or amend” these laws in line with its obligations under international law.
In its judgment, the ECOWAS Court held that the arrest and detention of the four Gambian journalists amounted to violations of their rights to freedom of expression, liberty and freedom of movement.
The ECOWAS Court also recounted in detail the torture that was inflicted on two of the journalists, which included beatings, detention in poor conditions, and the infliction of electric shock.
It relied on the testimony of the journalists, as well as independent medical evidence provided with the assistance of the International Rehabilitation Council for Torture Victims, to conclude that there had been a violation of the prohibition on torture.
The ECOWAS Court also considered the “root” cause of the claims brought before it, namely the Gambian criminal laws on libel, sedition and false news.
It quoted extensively from jurisprudence of the African Court on Human and Peoples’ Rights, the Inter-American Court of Human Rights, and the United Nations Human Rights Committee, in reaching the conclusion that these laws were “obvious” and “gross” violations of the right to freedom of expression.
The Court indicated that it was particularly important that laws applicable to speech be “narrowly drawn” because of the “chilling effect” that can be caused by vagueness or imprecision.
“At the time this case was filed, the Gambian media were operating in a climate of fear with journalists being arrested, detained, tortured, and even murdered for simply carrying out their work.”
Said Jonathan McCully, “this judgment is an important means to achieving redress for journalists whose rights had been violated under the previous regime of Yahya Jammeh, and for securing a favourable environment for journalists in the Gambia. We hope that the Gambia will implement this decision without delay.”
Noah Ajare, the lead lawyer representing the Applicants, said “this is a landmark judgment that will benefit journalists and freelancers across the continent, who have seen journalists systematically tortured and dehumanised over the years in the Gambia. I commend the boldness of the justices of the ECOWAS Court in delivering this extraordinary and epoch-making judgment.”
Whether or not the ECOWAS Court had a time limit that could bar its jurisdiction over human rights claims brought before it had been unclear for some time. In the case of Femi Falana & Anor. v. The Republic of Benin & 2 Ors. the Court looked at Article 9 of the Court’s Supplementary Protocol to determine whether an application filed in October 2007 regarding an alleged human rights violation that had taken place in April 2004 was admissible. Article 9 sets out the Court’s jurisdiction, specifying in 9(1) and (2) its jurisdiction regarding the interpretation and application of the Community Treaty, directives, and regulations, and acts or omissions by its officials. This is followed by Article 9(3), which read as follows:
“3. Any action by or against a Community Institution or any Member of the Community shall be statute barred after three (3) years from the date when the right of action arose.”
This is then followed by Article 9(4), which sets out the Court’s jurisdiction in human rights matters:
“4. The Court has jurisdiction to determine case of violation of human rights that occur in any Member State.”
No specific indication regarding the time limit in human rights matters – as is present regarding actions brought against the Community or its members – is included in the Protocol. In the Femi Falana case, however, the Court interpreted the time limitation in Article 9(3) as applying to human rights claims as well. As freedom of movement did not constitute a “gross violation of human rights”, in which case no statute of limitation could have applied in accordance with UN GA Resolution 60/147.
The Court clarified that, for interpretation purposes, the French version of the Supplementary Protocol is the preferred version. It reads as follows:
“L’action en responsabilite contre la Communauté ou celle de la Communauté contre des tiers ou ses agents se prescrivent par trois (3) ans à compter de la réalisation des dommages.”
Accordingly, the Court said, claims for the enforcement of human rights against Member States cannot be barred by the limitation period stated in the Supplementary Protocol. The Court explicitly stated that any previous decisions stating the contrary had hereby been overruled.
The Court also took the opportunity to address the issue of continuing violations, which so far had never been clarified explicitly by the Court. While in the case of Alade v. Federal Republic of Nigeria the Court considered on the merits a case filed in 2011 by a Nigerian citizen who had been imprisoned since 2003, the issue of continuing violations was not expressly considered in the judgment. A similar approach was taken in the case of Hydara v. The Gambia.
The Court cleared up any doubts today, when it stated that it recognised the concept of a “continuing harm” in relation to the applicants who had brought a claim concerning their existence in exile from The Gambia – the Court relied on the case of Randolph v. Togo, decided by the UN Human Rights Committee, to reach the conclusion that forced exile was a human rights violation of a continuing nature.
With this decision, the ECOWAS Court establishes itself as currently the most progressive human rights court in Africa when it comes to temporal jurisdiction. Within the region, the East African Court of Justice – which does not have explicit human rights jurisdiction, but can consider complaints about a violation of the East African Community Treaty and also concern human rights – is the most strict. The Court maintains a time limit of 2 months after the violation occurred for filing a claim before it (Article 32 of the Treaty Establishing the East African Community) and in the case of Emmanuel Mwakisha Mjawasi and Others v. The Attorney General of Kenya explicitly rejected the concept of continuing human rights violations. The African Court on Human and Peoples Rights’ rules do not impose an explicit time bar to human rights claims, but do state that applications should be filed “within a reasonable time from the date local remedies were exhausted” (Rule 40 of the Court’s Rules of Procedure). In Mtikila v. Tanzania, the African Court confirmed its recognition of the doctrine of continuing violations.
Looking further afield, the Inter-American Commission of Human Rights, which can refer cases on to the Inter-American Court maintains a time limit of 6 months (Article 32 of the Rules of Procedure). The European Court of Human Rights’ time limit to receive applications is 6 months upon exhaustion of (effective) domestic remedies (Article 35(2) of the European Convention), which will be shortened to 4 months when Protocol No. 15 to the European Convention enters into force.
The ECOWAS Court’s judgment helps in furthering its firm establishment as a human rights court. The Court reportedly ruled on around 249 cases since it commenced its activities in 2001. While statistics on the exact number of human rights applications and rulings are not available, the Court’s human rights mandate has, in the Court’s own words “become the centerpiece of its judicial activities.”
Noah Ajare Esq, an international human rights lawyer and expert in human rights litigation responsible for groundbreaking cases, said further that “This judgment is of tremendous importance not only for The Republic of the Gambia, but for the entire African Continent because it sets an important precedent for all. Journalist and freelancers across the continent can now freely practice their profession without intimidation.
